Cambridge Companions Online http://universitypublishingonline.org/cambridge/companions/ The Cambridge Companion to Ancient Greek Law Edited by Michael Gagarin, David Cohen Book DOI: http://dx.doi.org/10.1017/CCOL0521818400 Online ISBN: 9781139000758 Hardback ISBN: 9780521818407 Paperback ISBN: 9780521521598 Chapter 20 - Greek Tragedy and Law pp. 374-393 Chapter DOI: http://dx.doi.org/10.1017/CCOL0521818400.021 Cambridge University Press P1: JYD 0521818400c20.xml CB840/Gagarin 0521818400 June 8, 2005 18:52 20: Greek Tragedy and Law Danielle Allen S Method reek tragedy abounds with political crises – struggles over wrongdoing and punishment, efforts to overturn or found G regimes, contention about the rights of strangers and the weak. Clearly, punishment, constitutions, and asylum were all real legal is- sues in Athens, and the city had extensive institutions for dealing with them, some of which even work their ways into the plays as instru- ments available to the protagonists for resolving (or trying to resolve) their problems. Most famously in the Oresteia the Areopagus Court, with Athena’s expert help, decides the fate of Orestes (Eum. 470–752) as does the Argive Assembly in Euripides’ Orestes (866–956). Some form of conceptual continuum links tragedy and Athenian legal and political thought. But, because the political and legal crises of drama exist en- tirely in the realm of the imagination, what can be learned from them about the historical reality of law in Athens? Scholars working on English-language literary texts have recently refined techniques for analyzing law and literature together.1 Follow- ing the lead of eminent legal historian F. W. Maitland, who argued that “law and literature grew up together in the court of Henry II,” scholars have been exploring how concepts that developed in the legal arena – e.g., contract, evidence, testimony, privacy – have affected liter- ature and, inversely, how narrative techniques developed by writers have provided tools to lawyers and judges.2 Classicists have made a similar 1 James Boyd White’s The Legal Imagination inaugurated the field but has since been super- seded by W. Benn Michaels (1979), Stanley Fish (1989:Chs.4–7, 13), Martha Nussbaum (1995), and Brook Thomas (1997). For the reaction against this scholarship, see Posner (1988). 2 Id. 374 Cambridge Collections Online © Cambridge University Press, 2006 Downloaded from Cambridge Companions Online by IP 140.247.206.39 on Tue May 17 21:57:21 BST 2016. http://dx.doi.org/10.1017/CCOL0521818400.021 Cambridge Companions Online © Cambridge University Press, 2016 P1: JYD 0521818400c20.xml CB840/Gagarin 0521818400 June 8, 2005 18:52 Greek Tragedy and Law move with Euripides, pointing out how his characters, in contrast to their Aeschylean and Sohpoclean counterparts, employ the styles and tricks of courtroom argumentation.3 But the typical treatment of the relationship between Euripides and the law casts the influence as go- ing only in one direction, from the courts and rhetorical schools to Euripides. In the context of the English-language tradition, the bour- geoning law and literature scholarship depends on the simultaneity of the legal and literary archives under examination. One examines lyric poetry of the Cold War period – and its notions of intimacy, privacy, and confession – in respect to the growth in privacy law of exactly this same period.4 Thanks to the simultaneity, one can actually make claims about how each discursive field (law on the one hand, literature on the other) influenced the other. In contrast, students of the Greek classical period do not, by and large, have the luxury of contemporaneous legal and literary archives because the bulk of tragedy originates in the fifth century, whereas the greatest part of the legal archive, oratory, derives from the fourth. How then are classicists to use tragedy to study law? Several attempts have been made. In the middle of the twentieth century, old school historicists attempted to pin down each tragedy as a commentary on specific political and/or legal events. The Eumenides was (and still is) read as a commentary on reductions in the power of the Areopagus effected by Ephialtes and (maybe) Pericles around 462 b.c.e.5 Aeschylus’ Suppliants was interpreted as a comment on the exile of Themistocles and/or on Athens’ relationship to Argos, with which Athens would soon conclude a treaty.6 Indeed, this treaty with Argos of 462/1 was thought to lie behind the Eumenides, and another treaty with Argos in 420 is taken by scholars as the backdrop to Euripides’ Suppli- ants.7 And because so many of Euripides’ plays were produced during the Peloponnesian War, it has been especially tempting to take them as commentary on the particular events of that conflict – for instance, as opinions on Alcibiades’ behavior and the nature of the Spartans.8 3 As examples, take Hecuba and Polymestor arguing before Agamemnon in Hecuba,Iolaus and Copreus before Theseus in Children of Heracles, Hecuba and Helen in the Trojan Women, and Lycus and Amphitryon in Heracles. 4 E.g., Nelson (2002). 5 Gagarin (1976: esp. 106, 115–17, 127)remains helpful here. See also Podlecki (1966). 6 Iowe research on this subject to Alex Gottesman. For the political issues in the play, see Garvie (1969)and also Forrest (1960)and Diamantopoulos (1957). 7 Scholars (e.g., Decharme 1906: 139)point to parallels between the language of the treaty in the play in lines 1187–1995 and the language describing the treaty in Thucydides 5.47 and the fragment of the inscription found in Athens (IG I2 86). 8 E.g., Decharme (1906). 375 Cambridge Collections Online © Cambridge University Press, 2006 Downloaded from Cambridge Companions Online by IP 140.247.206.39 on Tue May 17 21:57:21 BST 2016. http://dx.doi.org/10.1017/CCOL0521818400.021 Cambridge Companions Online © Cambridge University Press, 2016 P1: JYD 0521818400c20.xml CB840/Gagarin 0521818400 June 8, 2005 18:52 The Cambridge Companion to Ancient Greek Law Unfortunately, this method of connecting plays to specific events is not ultimately satisfactory. We know too little about the details (as opposed to the broad picture) of fifth-century law and politics, and the lack of specific references in the tragedies to personages and happenings has drawn scholars into speculation. Worse still, this approach misprises the project of tragedy. The Athenian reaction to Phrynichus’ play on the Capture of Miletus – when the whole theater burst into tears at the portrayal of the recent catastrophe and the city subsequently fined Phrynichus 1000 drachmas and banned the play (Hdt. 6.21)–indicates that the Athenians did not want overly direct commentary on current events from their playwrights. This is not to say that the Athenians did not want responses from their tragedians to the hard issues of their day, but whatever of direct contemporary relevance they wanted from them, they preferred to get in an oblique fashion – addressing their own problems by “thinking through” the difficulties of mythic personages and other cities.9 Regardless of whether tragedians alluded to particular political events, they certainly employed, manipulated, and refashioned the crucial concepts of the Athenian legal and political vocabulary, albeit vivifying those terms via the experiences of heroes, princesses, Thebans, and Danaids.10 To underscore this point about how the tragic discourse related to the conceptual universe underpinning Athenian law and politics, let me turn to one of the rare moments when a tragic playwright does directly discuss goings-on in Athens. Every year in late January the Athenians held a festival called Anthesteria, which was also known as the Older Dionysia. On the second day of this festival, the Athenians broke out the year’s new wine. Named after the wine-pitchers, this day was called Choes. The Anthesteria was celebrated throughout Greece, but the Choes seems to have been an Athenian festival.11 Known as one of the “most polluted days” of the Athenian year, it was said to be the day that Orestes had arrived in Athens, bearing blood-guilt from the murder of his mother and seeking purification.12 On this festival day, the Athenians varnished their house doors with purifying pitch, and whole households retired behind the blackened fronts to drink 9 Formore elaborated accounts of the relationship between tragedy and the Athenian conceptual universe, see Zeitlin (1993), Goldhill (2000), and Allen (2000b: 73–6). 10 On the subject of ancient practices of giving concepts embodied form through narrative and symbol, see Allen (2000a). 11 Hamilton (1992: 32). 12 Burkert (1985: 238–9); Padel (1992: 182). Callimachus fr. 178.2;Phot.Lex. s.v. Choes.Cf. Robertson (1993: 206–8). Athenians 10.49, 437c. 376 Cambridge Collections Online © Cambridge University Press, 2006 Downloaded from Cambridge Companions Online by IP 140.247.206.39 on Tue May 17 21:57:21 BST 2016. http://dx.doi.org/10.1017/CCOL0521818400.021 Cambridge Companions Online © Cambridge University Press, 2016 P1: JYD 0521818400c20.xml CB840/Gagarin 0521818400 June 8, 2005 18:52 Greek Tragedy and Law the new wine in one another’s company.13 Adults received individual jugs out of which to drink (although it is impossible to say whether women participated as well as men). Even slaves might receive their ownindividual pitchers.14 Children, too, received jugs, although it is unlikely that they drank wine from them.15 The ritual practice of the festival stood in strong contrast to the sympotic tradition of passing a shared cup. Also unlike sympotic drinkers, those who participated in the festival drank without exchanging a word, competing to see who could drink the fastest, while enveloped in a ritual silence.16 The day was sufficiently important that the stages of an Athenian’s initiation into the community could be listed as birth, choes, adolescence, and marriage.17 On this day, all of the sanctuaries were closed except for one.18 In Iphigeneia in Tauris, Euripides gives an etiology of the festival that places its roots in Orestes’ arrival in Athens and the response of the community to his guilt.